Borrello: Clarify assisted living facility closure bill

Confusion over whether assisted living campuses that are closing could still accept short-term residents led Sen. George Borrello, R-Sunset Bay, to vote against legislation that sets a new process when elder care facilities close.

S.2230 was passed this week in a 58-5 vote in the state Senate. The bill (A.1706) has been sent to the state Assembly for consideration. The chapter amendment changes legislation passed in 2022 by requiring the operator of a facility that is closing to notify the appropriate regional office of the state Health Department and the state long-term care ombudsman office of the proposed closure in writing. Written notice must include a proposed plan for the closure or decertification of the assisted living residence and must be reviewed by the state health commissioner within 90 days of its submission.

The Department of Health and the operator must agree on the target closure or decertification date, as opposed to the original which included the Center for Health Care Quality and Surveillance to the final approval closure plan process.

“First of all, this is a very disruptive thing when an assisted living facility closes,” Borrello said. “We actually have one going through that right now in my hometown of Fredonia. I understand the purpose of this and I agree with the purpose of this. I do have some questions I’d like some clarity on potentially.”

Borrello was referencing the closure of the WCA Home in Fredonia. The facility’s closure was announced in January and, according to board president Christine Davis-Mantai, is still on track.

All residents have found other facilities and some have begun to move. The WCA Home employs 22 people, had 17 residents and rooms for 42 when the closure was announced. The state Department of Health has approved the plan for closing and noted the WCA’s licenses to operate will expire in February and March. Residents, family members, and employees were notified at special meetings held with the board of directors.

In 2012, the WCA Home obtained a special license as an approved provider of the state’s Assisted Living Program. This allowed its residents to age in place and receive additional care and services, while postponing the need to move to a facility with 24-hour skilled nursing care. It is the only adult home in Northern Chautauqua County licensed for the program.

Borrello’s issues with S.2230 centered on the acceptance of respite care or physical rehabilitation patients during a closure. While S.2230 is clear that there can be no new admissions once a closure begins, Borrello argued that respite care and rehabilitation patients should be admitted since they are short-term patients who can also bring some likely needed revenue to a facility experiencing financial issues.

“Our understanding and analysis was there would be no new admissions in that time period based on our analyst reading the law that was written,” Borrello said. “So it seems unclear whether they can accept new admissions, and that’s my question because the place in particular that I’m speaking of, as well as many other assisted living facilities, accept people for respite care. Sometimes you’re going out of town and you have an elderly parent and they need to stay a few days or a week. Many assisted living facilities also provide rehabilitation care, so in that 90-day period when a place like this is going to close in rural areas like mine, there may be no other options. Would they still be allowed to accept respite care and rehabilitations in that 90-day period?”

Sen. Cordell Cleare, D-New York City and sponsor of the chapter amendment, said the ability to accept respite care and rehabilitation patients is already included in state law but is not dealt with in the chapter amendment. Borrello said the language in the bill is unclear and should be clarified.

“I’m proud to carry this chapter amendment that provides both additional time and additional rights to individuals in the unfortunate event that the present assisted living facility closes,” Cleare said in her comments on the bill. “The bill before us require more affirmative notice, a proposed plan for the closure that must be reviewed by the health commissioner, due process rights with respect to the potential fee increases and supplemental security income and final Department of Health oversight of the target closure date. I wish to commend the original sponsor of this legislation, former Senator Diane Savino, for her work on this issue and I’m honored to pick up where she left off.”

Borrello reiterated his support for the bill’s intended purpose, but cautioned the legislature’s previous actions may make the clarifications he requested more necessary in the future.

“Senator Cleare, thank you very much,” Borrello said. “I appreciate it. I think we certainly had some disagreements on the interpretation of this bill at this moment and I also realize this was a bill that was carried and passed previously and these are amendments, and it’s my understanding that folks in the industry that you consulted with were helpful in drafting these amendments. I’m glad to see and hear that. My concern is there are still, I think, some clarity issues here. When you start talking about a facility closing, it’s very disruptive. As we continue to put more and more pressure on our adult care facilities with all the bills that we’ve passed in this chamber that have made it more and more difficult, in my opinion, for assisted living facilities and nursing homes to care for the elderly, we’re gong to see more closures, unfortunately, most likely. Therefore we should at least give that community the opportunity in that process to be the least disruptive as possible. Certainly notice will make it less disruptive, I totally agree.”


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